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April 19, 2011

An interesting pro-Reagan spin on crack-powder federal sentencing reform

The Heritage Foundation blog has this very interesting new post about federal crack-powder sentencing reform which is headlined "Vindicating Reagan’s Drug Policy … 25 Years Later."  Here are excerpts:

Two weeks ago, the U.S. Sentencing Commission promulgated a permanent amendment to the Federal Sentencing Guidelines that reduces jail time for those convicted of offenses related to crack cocaine.  Liberals would love to portray the new drug sentencing standard for crack cocaine as a success story, in which the Obama administration undid a draconian Reagan-era drug policy.  Critics are unduly harsh on Ronald Reagan’s drug policy, blaming the Great Communicator for driving the hysteria in the 1980s which led to the enactment of unfair criminal drug laws.

However, liberals might want to avoid taking credit for “fairer” crack cocaine sentencing laws when President Obama signed the Fair Sentencing Act of 2010.  A look back twenty-five years ago reveals it was not President Reagan behind the gross disparities in sentencing of cocaine traffickers but in fact the liberals who created the problem in the first place.

In 1986,...[the] person responsible for the crack-powder cocaine ratio contained within the Anti-Drug Abuse Act of 1986 was Vice President Joe Biden.  Then-Senator Biden succumbed to what he later referred to as “a feeling of desperation” and proposed a 100-to-1 ratio.  His Democratic colleague from Florida, Senator Lawton Chiles, went even farther, by suggesting a 1000-to-1 ratio.  The 100-to-1 ratio ultimately became law and served as the basis for the November 1, 1987 sentencing guidelines.  By contrast, the Reagan administration proposed a much more reasonable 20-to-1 crack-powder ratio.

As a result of adopting Senator Biden’s ratio, defendants convicted of trafficking 50 grams of crack cocaine received a mandatory minimum sentence of 10 years, the same sentence given to someone who for trafficking in 5,000 grams of powder cocaine. Confronted with this disparity, the Sentencing Commission proposed reductions to the ratio in 1995, 1997, 2002 and 2007.  Each of these recommendations was unsuccessful because Congress refused to make a change.

Twenty years after his proposal became law, Biden backtracked, admitting that the facts that informed Congress’s determination “have proved to be wrong, making the underlying cocaine sentence structure we created unfounded and unfair.”  He also said, “Each of the myths upon which we based the sentencing disparity has since been dispelled or altered.”

The amendment to the guidelines that was promulgated last week raised the quantities of crack cocaine to trigger mandatory minimum terms from 5 to 28 grams for five-year sentences and from 50 to 280 grams for ten-year sentences.  Thus, the Fair Sentencing Act of 2010 reduced the ration to 18-to-1.  After multiple attempts by the Sentencing Commission to undo Biden’s proposal and years where crack and powder cocaine traffickers were sentenced in vastly different ways, a proportion akin to Reagan’s policy was established.

On August 3, 2010, President Obama signed the Fair Sentencing Act in the Oval Office.  He made no remarks at the signing.  What President Obama probably should have said was that twenty-five years of a vast disparity in drug sentencing could have been avoided if Congress only listened to Reagan.

April 19, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (11) | TrackBack

New meta-study of death penalty in North Carolina urging abolition

As detailed in this local new article, which is headlined "Death penalty ineffective, too expensive, new study says," a new study is urging death penalty repeal in the Tar Heel State.  Here are the basics:

North Carolina should repeal the death penalty because it is expensive, ineffective and racially biased, an Appalachian State University professor says in a new study.  The study was done by Matthew Robinson, a professor of government and justice studies.  Robinson analyzed data from more than 20 studies on the death penalty and released his findings Monday at a news conference in Raleigh.

"In the past six years, three states have abolished the death penalty: Illinois, New Mexico and New Jersey," Robinson said in an interview after the news conference.  "They did it for the same reason.  They found racial bias, they found it to be costly, they found it to be ineffective and a threat to innocent people."

Robinson said the studies he looked at were remarkably consistent in their conclusions — that the death penalty doesn't deter crime, is racially biased and has led to people being wrongfully convicted.

Robinson's study comes two weeks after Republicans filed a bill in the state House that would effectively nullify the Racial Justice Act that was signed into law in 2009.  The law allows a death row inmate or a defendant facing the death penalty to use statistics and other evidence to prove that racial bias was a "significant factor" in his sentence or in prosecutors' decision to pursue the death penalty.  The only remedy under the law is for a defendant's sentence to be reduced to life in prison without the possibility of parole. 

The full study by Matthew Robinson, which is titled "The Death Penalty in  North Carolina: A Summary of the Data and Scientific Studies," runs 50+ pages and is available at this link.

April 19, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

April 18, 2011

Oral argument transcript in SCOTUS Tapia case...

is now available at this link and it is worthwhile read not just for federal sentencing practitioners but also for anyone interested in the intersection of punishment theory and sentencing practice.

Because I served as co-counsel to the appointed amicus, I will continue my personal no-comment policy on this case and its issues until a decision comes down in the coming months.  That policy, however, should not prevent or restrain others from sharing their thoughts on this case.

Prior posts on Tapia case:

April 18, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Two notable new pieces from The Crime Report

I continue to highlight The Crime Report as a daily must-read in part because of original pieces like these new one now appearing on the site:

April 18, 2011 in Who Sentences? | Permalink | Comments (0) | TrackBack

NYT Sidebar column discusses crack sentencing in FSA pipeline cases

Now available on line here is the latest New York Times Sidebar column by Adam Liptak, which this week is focused on the debates over application on the new Fair Sentencing Act.  Here are excerpts:

The federal judiciary is in something like open rebellion over a new law addressing the sentences to be meted out to people convicted of selling crack cocaine.  A couple of weeks ago, for instance, a judge in Massachusetts said he found it “unendurable” to have to impose sentences that are “both unjust and racist.”

The new law, the Fair Sentencing Act of 2010, narrowed the vast gap between penalties for crimes involving crack and powder cocaine, a development many judges welcomed.  But it turns out that the law may have been misnamed. “The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive,” a federal appeals court judge in Chicago wrote last month.

The problem is that the law seems to reduce sentences only for offenses committed after it went into effect in August.  The usual rule is that laws do not apply retroactively unless Congress says so, and here Congress said nothing.  That seems to mean that hundreds and perhaps thousands of defendants who committed crack-related crimes before August will still face very harsh sentences.

In his recent decision, Judge Michael A. Ponsor of Federal District Court in Springfield, Mass., said that could not be right.  It is one thing, he wrote, to have to impose an unjust sentence.  But it is asking too much of judges, he went on, to require them to continue to sentence defendants under a racially skewed system “when the injustice has been identified and formally remedied by Congress itself.”

About 30 other federal trial judges have said more or less the same thing. Margaret Colgate Love, a former Justice Department official who oversaw pardon applications, said the decisions were a part of a movement by judges who are sick of imposing sentences they view as too harsh....

Almost no one defends the way offenses involving crack and powder were treated under the old law, which was enacted when crack, in particular, was seen as new, terrifying and seemingly unstoppable.  Crack and powder cocaine are two forms of the same drug. But, under the old law, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

The new law narrows the gap, for no reason better than compromise, to 18 to one.  In practice, that means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.

In November, the lead sponsors of the new law — Senator Richard J. Durbin, Democrat of Illinois, and Senator Patrick J. Leahy, Democrat of Vermont — wrote to Attorney General Eric H. Holder Jr.  They urged Mr. Holder to apply the new law to people who had committed their crimes before it was passed but were sentenced after.

The two senators wrote approvingly of an October decision from Judge D. Brock Hornby of Federal District Court in Maine, who said he would “find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.”  They urged Mr. Holder to exercise restraint and prosecutorial discretion “regardless of the legal merits of this position.”  The Justice Department responded by appealing the 56-month sentence Judge Hornby had imposed, saying the old law required a sentence of at least 10 years.

April 18, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Offense Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

April 17, 2011

Off to DC to get a front-row view of Tapia argument as second chair

As noted in this prior post, I had the pleasure and honor of helping Professor Stephanos Bibas prepare an amicus brief supporting the judgment of the Ninth Circuit in the SCOTUS case of Tapia v. US.  (Professor Bibas was invited to prepare this brief by the Supreme Court because the Solicitor General has adopted the defendant's position on the chief statutory issue, and he kindly invited me to help with the briefing.)

Tapia is being argued tomorrow morning, and I am heading out to DC now to attend the argument as co-counsel to the appointed amicus.  Consequently, I likely will be blogging little or none for the next 24 hours.  In the meantime, folks can read up on the Tapia case via this SCOTUSblog post providing an argument preview.  That post is titled, "'Recognizing' rehabilitation in sentencing" and provides this effective one-sentence summary:  "In Tapia v. United States, the Court will consider whether the federal Sentencing Reform Act prohibits courts from factoring rehabilitative goals into the length of a defendant’s prison sentence."  The recent history and briefing in the Tapia case is available at this SCOTUSblog page.

April 17, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

Important new book urges "more prudent use of habeas in state criminal cases"

Book-cover I am pleased to be able to blog about an important new book that arrived in the mail this week and that today has the showcase of the New York Timesop-ed page.  The book, shown here, is titled "Habeas for the 21st Century: Uses, Abuses and the Future of the Great Writ" and is authored by Professors Joseph Hoffmann and Nancy King.  The book now has this supportive website and this new blogon habeas developments, and today's New York Times includes this op-ed from the authors headlined "Justice, Too Much and Too Expensive." The start of the op-ed effectively summarizes some of the key themes and proposals in the book:

Habeas corpus: it is, as Alexander Hamilton suggested, the “bulwark” of a Constitution.  A habeas petition gives a single federal judge the authority to decide if a prisoner is being held unlawfully and order his release.  At Guantánamo, habeas plays a crucial role: it provides the essential means by which the federal judiciary can ensure that innocent people are not mistakenly held, indefinitely, as enemy combatants. This is an example of habeas at its best.

But habeas is also subject to abuse. State prisoners convicted of non-capital offenses file more than 17,000 habeas corpus petitions in federal court each year.  Each petition challenges the constitutionality of some aspect of the prisoner’s conviction or sentence, even though that conviction and sentence already have been affirmed by at least one state court, and sometimes several.

Only a tiny fraction of these habeas petitioners — estimated at less than four-tenths of one percent — obtain any kind of relief, which is usually a new trial, sentencing or appeal, after which they may be sent back to prison.

Each petition consumes the scarce resources of both the federal and state governments. Indeed, the never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. By almost any measure, the use, and abuse, of habeas by convicted state prisoners is a failure, one that could corrode one of the most revered pillars of our legal system.

We need a new approach — one that ensures a more prudent use of habeas in state criminal cases.

Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence.  Limiting habeas to these cases will help protect the long-term future of the writ in all of its varied forms.

I am a big fan of work by Professors Hoffmann and King, both in the arena of habeas review and concerning many other criminal justice topics.  And, based on what I already know about this book from reading the first chapter and prior habeas research by Professors Hoffmann and King, this book move quickly to the topic of my must-read list.

That all said, I am not a big fan of the policy prescriptions of Professors Hoffmann and King here.  I agree that modern habeas review is broken, but I propose a much different solution in this recently published article: Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).  Here is a snippet from my introduction that speaks in part to the proposals of Professors Hoffmann and King:

Especially given the widely shared view that current federal habeas review of criminal convictions is deeply flawed — and with Professors Joseph Hoffmann and Nancy King contending that federal habeas is beyond salvaging and proposing total elimination of federal habeas review for most state prisoners — it is time for policymakers and commentators to consider a bold new approach.  This Essay suggests that such a new approach could and should incorporate a return to the structural and procedural vision of criminal procedure that the Framers of our Constitution had in mind at the Founding nearly 250 years ago, and it contends that, by incorporating a jury component in federal habeas proceedings, the modern collateral review process will serve as a more effective and robust check on the operations of modern criminal justice systems.

April 17, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

On the state SCt dockets: LWOP for teens in California and guns for pot users in Oregon

I sure wish an enterprising criminal law academic and/or practitioners would follow closely via a blog or other on-line resource all the interesting and ground-breaking criminal justice issues that regularly come before state supreme courts.  There are  lots of really good blogs that cover various specific criminal justice issues and some that give special attention to important criminal law rulings coming from certain federal circuits or a particular state's courts.  But to my knowledge, nobody keeps a focused blogsphere eye on many cutting-edge criminal law issues as they come before state supreme courts generally.

This moment of longing comes to mind not only because I know I no longer am able to keep up with all significant state Blakely and death penalty developments, but also  because of two new pieces at How Appealing reporting on two notable new cases before state supreme courts in California and Oregon:

April 17, 2011 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Older inmate population grows, puts strain on system"

The title of this post is the headline of this effective article from the Auburn Citizen (which gives the piece extra bite for true students of prison history).  Here are excerpts:

One hundred ninety-two-year-old Auburn Correctional Facility is graying, and it’s not just the weather-worn stone walls.  In New York as across the country, the inmate population is aging rapidly.  The trend mirrors what’s happening among the country’s free population and creates many of the same fiscal dilemmas due to rising health care costs....

An older inmate population is the natural result of the strict sentencing that prevailed across the country in the 1980s and 1990s, researchers and advocates say.  Offenders who previously would have received short sentences, or “skid bids,” as they’re known behind bars, instead found themselves locked up for decades or life.

One example in New York was the Rockefeller drug laws, which from 1973 until their repeal in 2009 mandated sentences of 15 years to life for possessing more than four ounces of “narcotic drugs” such as heroin and cocaine.  As a result of such “get tough” sentencing guidelines, the state prison population grew dramatically from about 10,000 in 1973 to over 70,000 in 1992.  Many of the inmates who received life sentences as young men in the 1970s are reaching their 60s this decade.

In New York, there are 847 inmates age 65 and older.  They make up about 1.5 percent of the overall prison population, a proportion that has been rising steadily for several years, state Department of Corrections and Community Services spokesman Peter Cutler said.  As recently as 1992, it had been just 0.3 percent.

Nationally, the 55-and-older segment of the prison population grew by 77 percent from 1999 to 2007, according to a study by the Pew Center on the States.  The change is important because elderly inmates like Bernard Hatch are much more costly to house, mostly because of health care.

A 2010 report by the Vera Institute for Justice cited studies showing that elderly inmates make five times as many trips to health facilities and cost three times as much to incarcerate as their younger counterparts.  Elderly inmates average three chronic conditions and 20 percent suffer from mental illness, according to the report....

The demographic change and the attendant cost spike has sent some states scrambling for ways to handle older inmates.  As of 2008, six states had a dedicated prison for the elderly, eight had hospices and 13 had dedicated elderly units, according to the Vera report....

New York is also among the 15 states with some sort of geriatric release process. Such programs are usually based on inmates’ terminal illnesses, and advocates point out that recidivism rates plummet as offenders age.  One study showed a one-year recidivism rate of 3.2 percent for released inmates age 55 and older compared to 45 percent for people between 18 and 29 years old.  The compassionate release program in New York, however, results in very few releases: just eight in 2010 out of 140 applicants, Cutler said.

“All the studies show that recidivism is virtually non-existent once a person gets over 45,” said Soffiyah Elijah, director of the Correctional Association, a non-profit prison advocacy group.  “I think it would be smart for us to take another look at how we’re spending taxpayers’ dollars to keep those individuals incarcerated.”...

People in their 70s and 80s are expensive to incarcerate, but prison officials see a tradeoff in having “elder statesmen” in the general population. “The younger inmates look up to them,” Cutler said.  “They have a calming influence in some respects.”

Some related posts:

April 17, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack